Exhibit 10.4
TRANSITION AGREEMENT
I.RECITALS
A. ThisAGREEMENT, which is effective on theEFFECTIVE DATE, is by and between Newmont International Services Limited and Guy Lansdown (hereinafter“EMPLOYEE”).
B. In consideration of the promises contained in thisAGREEMENT, NEWMONT andEMPLOYEE agree as follows:
II.DEFINITIONS
The following definitions shall be applicable for the purposes of only thisAGREEMENT:
A.“AGREEMENT” means this Transition Agreement.
B.“CLAIMS” means any debt, obligation, demand, application for attorneys’ fees and/or dispute resolution costs, cause of action, judgment, controversy or claim of any kind whatsoever betweenEMPLOYEE andNEWMONT, whether arising under common law or statute, including but not limited to claims for breach of contract (express or implied), quasi-contract, promissory estoppel, tort, fraud, misrepresentation, discrimination or any other legal theory; disputes relating to the employment relationship between the parties, termination thereof, or the interpretation of thisAGREEMENT; any and all debts, obligations, claims, demands, compensation, or rights under the company’s employee benefit plans; claims under Title VII of the Civil Rights Act of 1964, as amended; claims under the Civil Rights Act of 1991; claims under the Family and Medical Leave Act of 1993; claims under the Age Discrimination in Employment Act of 1967, as amended; claims under 42 U.S.C. § 1981, § 1981a, § 1983, § 1985, or § 1988; claims under the Americans with Disabilities Act of 1990, as amended; claims under the Employee Retirement Income Security Act of 1974, as amended; claims under the Worker Adjustment and Retraining Notification Act; or any other applicable federal, state, or local statute or ordinance, excluding claims for workers’ compensation benefits and claims under the Fair Labor Standards Act of 1938, as amended.
C.“EFFECTIVE DATE” means the first date upon which all of the following have occurred: (1) EMPLOYEE has executed thisAGREEMENT;(2) the revocation period, if any, has expired without revocation byEMPLOYEE and; (3) the executed agreement has been timely returned to Kelli McKeehan, Group Executive of Human Resources, Newmont, 6363 South Fiddlers Green Circle, Greenwood Village, CO 80111.
D.“EMPLOYEE” means Guy Lansdown.
E.“NEWMONT” means Newmont International Services Limited and any predecessor or current or former subsidiary, parent, affiliated company, or successor of any of them, or benefit plan maintained or participated in by any of them , and the current and former directors, officers, employees, shareholders and agents of any or all of them, unless otherwise specifically stated in thisAGREEMENT.
III.COVENANTS
A.Transition Services.EMPLOYEE will continue his at-will employment withNEWMONT until August 15, 2012 (“Transition Period”), in a position designed to transferEMPLOYEE’S duties as Executive Vice President of Discovery and Development to the designated leadership ofNEWMONT. During the Transition Period,EMPLOYEE shall receive base salary at the same rate asEMPLOYEE’S base salary as of March 1, 2012, andEMPLOYEE shall be entitled to benefits under the health, welfare and retirement benefits ofNEWMONT for whichEMPLOYEE is eligible pursuant to the terms of such plans. However,EMPLOYEE agrees that as of theEFFECTIVE DATE of thisAGREEMENT that he is not eligible for: 1) severance benefits of any kind under the Executive Severance Plan of Newmont, or any other severance plan of Newmont, and; 2) change of control benefits of any kind under the Executive Change of Control Plan of Newmont or any other change of control plan of Newmont.
B.Consideration for Transition Services.NEWMONTshall pay toEMPLOYEE: 1) a one-time cash lump sum amount of $1,012,550 on January 15, 2013, and; 2) a pro-rated (pro-rated to August 15, 2012) cash bonus determined according to the terms of the Senior Executive Compensation Program (“SECP”), based upon actual company performance for 2012 and target personal performance for 2012.
C.Employment Beyond Transition Period. On August 15, 2012,NEWMONT shall offer toEMPLOYEE a part-time at-will position withNEWMONT for at least 8 hours per week, or equivalent hours on an alternative schedule depending upon the nature of the assigned work.NEWMONT shall collaborate withEMPLOYEE to assign work toEMPLOYEE for the part-time position, including providing reasonable notice toEMPLOYEE of assigned work and associated travel, and taking into consideration commitments thatEMPLOYEE has outside ofNEWMONT. NEWMONT shall have the right to determine the cash compensation for the offered part-time role, andEMPLOYEE understands and agrees that the part-time at-will position shall not be eligible for: 1) a cash bonus (presently known as Annual Incentive Compensation Program) of any sort; 2) any kind of equity compensation, including but not limited to performance leveraged stock units, strategic stock units, restricted stock units, financial performance shares or stock options; 3) severance benefits of any kind, including but not limited to benefits under the Executive Severance Plan of Newmont and the Severance Plan of Newmont, and; 4) change of control benefits of any kind under the Executive Change of Control Plan of Newmont or any other change of control plan of Newmont. The part-time at-will offer of employment will be eligible for all other health, welfare and retirement benefits based upon the provisions of the applicable plan document.
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D.Treatment of Financial Performance Shares and Stock Options Granted as of December 31, 2011. All financial performance shares and stock options granted toEMPLOYEE as of December 31, 2011, shall continue to vest according to the terms of the award agreement, as long as EMPLOYEE continues employment withNEWMONT. IfEMPLOYEEseparates employment withNEWMONT for any reason other than cause, as defined in the Executive Severance Plan of Newmont, before February 15, 2014,NEWMONTshall apply the severance provision of the applicable equity award agreement.
E.Treatment of Performance Leveraged Stock Units. With respect to performance leveraged stock unit targets established in 2010, 2011 and 2012, EMPLOYEE shall be entitled to actual payout of such awards at the end of the performance period, ifEMPLOYEE is employed at the time of payout withNEWMONT. IfEMPLOYEE separates employment withNEWMONT for any reason other than cause as defined in the Executive Severance Plan of Newmont, before March 5, 2015,NEWMONT shall apply the severance treatment to any outstanding performance leveraged stock unit targets as stated in the SECP.
F.Health Insurance Benefits in the Event of Separation of Employment before February 15, 2014. IfEMPLOYEE separates employment withNEWMONT for any reason other than cause, as defined in the Executive Severance Plan of Newmont, before February 15, 2014, NEWMONT shall payEMPLOYEE’S costs for Consolidated Omnibus Reconciliation Act(“COBRA”) coverage for the remaining period of time up to February 15, 2014, ifEMPLOYEE electsCOBRA.
G.Alternative Employment after August 15, 2012. IfEMPLOYEE accepts the offer of part-time employment withNEWMONT after August 15, 2012, andEMPLOYEE wants to accept employment or conduct consulting with any non-NEWMONT entity,EMPLOYEE shall provide a written request toNEWMONTspecifying the proposed arrangement, nature of work and entity for whichEMPLOYEE would work or consult.NEWMONT shall have the right to either grant or denyEMPLOYEE the right to accept the alternative employment or consulting, while maintaining continued employment withNEWMONT. NEWMONT’S decision shall be based upon its reasonable discretion, but in no event shallNEWMONTbe required to grantEMPLOYEE the right to accept employment or consulting with a competitor ofNEWMONT or ifEMPLOYEE’S request presents a conflict of interest forEMPLOYEE, as determined in the reasonable discretion ofNEWMONT.
H.Release of Claims ByEMPLOYEE. As a material inducement toNEWMONT to enter into thisAGREEMENT,EMPLOYEE, as a free and voluntary act, hereby forever releases and dischargesNEWMONT from, and covenants not to sueNEWMONT for,CLAIMS whichEMPLOYEE might have or assert againstNEWMONT (1) by reason ofEMPLOYEE’Semployment byNEWMONT and all circumstances related thereto up to theEFFECTIVE DATE of thisAGREEMENT; or (2) by reason of any other matter, cause or thing whatsoever which may have occurred betweenEMPLOYEE andNEWMONT prior to theEFFECTIVE DATE of thisAGREEMENT, excluding claims regardingEMPLOYEE’s vested Pension or Savings Plan benefits.
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IV.ADDITIONAL PROVISIONS
A.Severability. In case any one or more of the provisions of thisAGREEMENT shall be found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired. Further, any provision found to be invalid, illegal or unenforceable shall be deemed, without further action on the part of the parties hereto, to be modified, amended and/or limited to the minimum extent necessary to render such clauses and/or provisions valid and enforceable.
B.Entire Agreement. ThisAGREEMENT supersedes all prior written and verbal promises and agreements between the parties. ThisAGREEMENT constitutes the entire agreement between the parties and may be amended, modified or superseded only by a written agreement signed by both parties. No oral statements by any employee ofNEWMONT shall modify or otherwise affect the terms and provisions of thisAGREEMENT.
C.Governing Law. ThisAGREEMENT shall be construed in accordance with the laws of the State of Colorado.
D.No Admission of Liability.NEWMONT denies that it has taken any improper action againstEMPLOYEEin violation of any federal, state, or local law or common law principle. The parties agree that thisAGREEMENT shall not be admissible in any proceeding as evidence of any improper conduct byNEWMONT.
E.Free and Voluntary Act. This release means, in part, that EMPLOYEE gives up all rights to damages and/or money based upon any claims against NEWMONT of age discrimination that arise through the date this AGREEMENT is signed. EMPLOYEE acknowledges that EMPLOYEE has been given at least twenty-one (21) days to consider this AGREEMENT and that EMPLOYEE has been advised to consult with an attorney prior to signing this AGREEMENT. EMPLOYEE may waive the balance of the twenty-one (21) day consideration period by signing this AGREEMENT sooner. EMPLOYEE further acknowledges that by law EMPLOYEE has the right to revoke (that is, cancel) this AGREEMENT within seven (7) calendar days of signing it. To be effective, EMPLOYEE’S revocation must be in writing and tendered to Kelli McKeehan, Group Executive of Human Resources, Newmont, 6363 South Fiddlers Green Circle, Greenwood Village, CO 80111, either by mail or by hand delivery within the seven (7) day period. If by mail, the revocation must be: 1) postmarked within the seven (7) day period; 2) properly addressed; and 3) sent by Certified Mail, Return Receipt Requested. In the event that EMPLOYEE exercises this right to revoke, EMPLOYEE agrees to return to NEWMONT any and all sums paid to EMPLOYEE in consideration of the AGREEMENT.
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F.No Other Representations.EMPLOYEE acknowledges that no promises or representations have been made to induceEMPLOYEE to sign thisAGREEMENT other than as expressly set forth herein and thatEMPLOYEE has signed thisAGREEMENTas a free and voluntary act.
THIS IS A RELEASE – BY SIGNING, YOU ARE ACKNOWLEDGING THAT YOU
HAVE READ, UNDERSTAND, AND AGREE TO THE TERMS SET FORTH
ABOVE. BEFORE SIGNING YOU SHOULD READ CAREFULLY
AND CONSULT WITH AN ATTORNEY
| | | | | | |
| NEWMONT | | | | EMPLOYEE |
| | | |
| By: | | /s/ William N. MacGowan | | | | /s/ Guy Lansdown |
| Title: | | EVP, Human Resources | | | | |
| Date: | | May 18, 2012 | | | | Date: May 15, 2012 |
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